Medical assistance in dying- WSIB aspects

November 21, 2019

After the Criminal Code was amended several years ago to permit medical assistance in dying (MAiD), section 2.2 of the Workplace Safety and Insurance Act was added. This section provides that a worker who receives MAiD is deemed to have died as a result of the injury or disease for which the worker was determined to be eligible to receive MAiD. Where there is only one condition that is of any significance, the section does not pose any practical difficulty for death benefit adjudication. Indeed, it simplifies matters. The one condition is either compensable in which case benefits flow, or non-compensable, in which case they do not.

Where two or more conditions are involved, the picture is understandably less clear. MAiD is permitted in section 241.2 of the Code where the person has a grievous and irremediable medical condition, which must meet all of the following criteria:

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

A physician or nurse practitioner must be of the opinion that the person meets all of these criteria. By virtue of the wording in (d), all of the person's medical circumstances are relevant in deciding whether a natural death is reasonably foreseeable. The forms that the person who applies for MAiD and the physician or nurse practitioner who certify that the person meets the criteria do not contain a listing of the condition or conditions for which MAiD is sought. (please see http://health.gov.on.ca/en/pro/programs/maid/).

WSIB policy provides that where a worker is eligible for MAiD and has both compensable and non-compensable conditions, the WSIB must be satisfied that the compensable condition made a significant contribution to "him being eligible for MAiD". The policy authorizes decision-makers to obtain opinions from Medical Consultants on the issue. Please see OP 15-06-09, https://www.wsib.ca/en/operational-policy-manual/medical-assistance-dying. The Tribunal has decided on numerous occasions that a significant contribution is a contribution that is more than minimal (de minimis). Please see Decisions 322/19 and 114/19, for instance.

Where compensable and non-compensable conditions are involved in an application for MAiD, it will be particularly useful to have documentation from the certifying doctor or nurse practitioner about the importance of the compensable condition in their opinion that the worker's natural death is reasonably foreseeable. With good documentation from the certifier, there is less chance that the Board will refer the matter out to a Medical Consultant with all of the attendant risks to the worker's family's claim from such a referral.